Friday, April 02, 2010

If you get your client deported . . . , you might be ineffective

On March 31, 2010, the SCOTUS issued the opinion in Padilla v. Kentucky, placing a duty upon defense counsel to inform noncitizen clients of the negative immigration consequences of pending criminal charges (before pleading the clients out to those charges). The SCOTUS held:

Because counsel must inform a client whether his plea carries a risk of deportation, Padilla has sufficiently alleged that his counsel was constitutionally deficient. Whether he is entitled to relief depends on whether he has been prejudiced, a matter not addressed here.

The SCOTUS did not identify whether deportation was a “collateral consequence” of a criminal conviction, but stated:

Because the drastic measure of deportation or removal is now virtually inevitable for a vast number of noncitizens convicted of crimes, the importance of accurate legal advice for noncitizens accused of crimes has never been more important. Thus, as a matter of federal law, deportation is an integral part of the penalty that may be imposed on noncitizen defendants who plead guilty to specified crimes.

The SCOTUS explained that Padilla's attorney was ineffective and, at the same time, discussed the duties of defense counsel regarding immigration consequences:

The consequences of Padilla’s plea could easily be determined from reading the removal statute, his deportation was presumptively mandatory, and his counsel’s advice was incorrect. There will, however, undoubtedly be numerous situations in which the deportation consequences of a plea are unclear. In those cases, a criminal defense attorney need do no more than advise a noncitizen client that pending criminal charges may carry adverse immigration consequences. But when the deportation consequence is truly clear, as it was here, the duty to give correct advice is equally clear.

(Emphasis added). Thus, the duties of defense counsel regarding immigration consequences can be summed up as follows:

  1. Know whether your client is a noncitizen (I added this one, but it seems like counsel should not be able to “fail to investigate” a client’s immigration status to get out of the duty to inform them of immigration consequences).
  2. If the deportation consequences of certain offenses are clear (read the removal statute), advise your noncitizen clients of the deportation consequences for the criminal charges they are facing (e.g., does the charge make deportation presumptively mandatory?);
  3. If deportation consequences are not clear, advise the noncitizen clients that any criminal charges may carry adverse immigration consequences.

For a good resource on this area of the law, here is a link to a free copy of Tooby's Guide to Criminal Immigration Law.

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